“I didn’t want to go to prison and I was relieved to be done with the situation,” Fainaru-Wada said. “By the same token, this was not how this was supposed to end. I felt like everyone who helped us and took risks for us were whistle-blowers in the truest sense. The idea that the government was now prosecuting somebody . . . I wasn’t celebrating. Lance and I had lunch the next day. We were mostly decompressing. We were shell-shocked.”
In court Ellerman’s lawyer offered no excuses for Ellerman’s behavior, but countered that “Mr. Ellerman has been living in a mental and emotional prison for the past three years. Since he committed these acts, Mr. Ellerman has been punished beyond measure by having to live with the guilt, torment and uncertainty of where his life was headed.”
In a handwritten letter to the probation officer assigned to write his presentence report, Ellerman said he had been going through “severe difficulties” in his life when he leaked the transcripts and then lied about it, and attributed his lapse in judgment to cocaine and alcohol abuse, the pressure of the high-profile BALCO case, and unspecified “pressure” from Fainaru-Wada:
I was weak and caved to the pressures that under normal circumstances would not have phased [
sic
] me. When I let the reporters view the grand jury transcripts I made the mistake of my life. It was certainly not calculated or premeditated. I gave no thought as to why or what I was doing. I did not plan or calculate the consequences of my decisions, good or bad. In my depressed, drugged-out mind the training and the line between right and wrong no longer existed.
His lawyer said Ellerman offered these details as “an explanation, and not as an excuse” and that he “understands his actions were offensive and an affront to the judicial process as a whole . . . Mr. Ellerman is genuinely remorseful.”
Judge White rejected the plea agreement as too lenient. He wanted a longer term than the twenty-four-month cap the prosecutors had agreed to, and told them to come back in a month. Then, on July 2, President Bush commuted Scooter Libby’s sentence, which became the centerpiece for Ellerman’s plea for leniency. Like Libby, Ellerman was a lawyer convicted of false statements. Unlike Libby, Ellerman had leaked information about steroid use in professional sports, not national security information. Moreover, Ellerman acknowledged his guilt, pleaded guilty to four felonies, and expressed remorse. “Mr. Libby took the government all the way through a jury trial and as far as defense counsel knows, Libby has never publicly acknowledged any wrongdoing on his part,” Tedmon argued.
But Judge White made short shrift of that argument. “If Mr. Ellerman is dissatisfied with his sentence, he should seek a commutation from the president,” said Judge White, himself a Bush appointee. He also criticized Bush for commuting Libby’s sentence after his administration had urged judges to adhere to federal sentencing guidelines. “Under the president’s reasoning, any white-collar defendant should receive no jail time, regardless of the reprehensibility of the crime,” he noted.
The subsequent hearing put the government in the odd position of defending Ellerman, arguing that twenty-four months was an adequate prison term, and urging the judge to give him credit for coming forward and sparing the reporters a prison stay.
“He didn’t come forward. He was caught,” White tartly observed. “Mr. Ellerman . . . I really want to hear right out of your mouth what was going on in your mind at the time you did these crimes.”
Ellerman replied, “When they asked me time after time after time to see these transcripts and I allowed it, I did not measure that in my mind . . . I should have had the courage to stand up and tell cocounsel that I’m the one that leaked the information. But when you lie it’s difficult to come forward and tell the truth. What I should have had the integrity to do I didn’t have the backbone to stand up and say ‘I did it.’ I didn’t and it took on a life of its own. Once you lie you have to continue to lie.
“I’m glad this is exposed. I don’t have to pack this around anymore. I’m glad that I can get rid of this and do my time and live a productive life. . . . I lied, I filed a false declaration. I didn’t have the courage to come forward and stop the lying. I didn’t do it and I apologize. I’m prepared to be sentenced. I’m sorry for what I’ve done. I can’t undo it, Judge. But I can make you a promise. I can be a better father, be a better son, and be a better husband, and I can be a better citizen and lead a productive life.”
Ellerman was fighting back tears. “That’s all I can offer you right now is to be better. I can’t undo my crime,” he concluded.
Judge White said he’d ponder Ellerman’s statement over lunch. When he returned, he seemed to have softened his views slightly. He said he had seriously considered sentencing him to a prison term longer than that called for by the sentencing guidelines, but had decided on thirty months–just six months longer than the maximum under his original plea agreement–followed by three years of court supervision. “If you can’t believe what the lawyers say, you have no basis for finding the truth, no basis to follow the law, and the system breaks down,” White said.
S
everal weeks later, on August 2, 2007, Marion Jones and her lawyer, Richard Nichols, sat down with two federal prosecutors, E. Danya Perry and Daniel Levy, this time in New York. Agents from the Immigration and Customs Enforcement agency joined them. Jones was now living in Austin, Texas, with her new husband, Obadele Thompson, another Olympic track medalist and a native of Barbados. Her name was now Marion Jones-Thompson. She was pregnant. She’d come to the interview voluntarily, not under subpoena, and not as a suspect but simply as a potential witness. She didn’t have an immunity agreement, since she wasn’t suspected of any wrongdoing and there didn’t seem to be any need for one. As in California, all she had to do was answer truthfully or, if she chose, decline to answer at all. The prosecutors and agents were hoping she could help them.
This investigation had nothing to do with BALCO, except for some of the people involved, including Tim Montgomery, the father of her first child.
For all his charm and athletic prowess, Montgomery had caused Jones a whirlwind of trouble and heartbreak. His promising track career had nosedived since his grand jury testimony and Ellerman’s subsequent leaking of the transcript, in which he admitted using illegal drugs. He failed to qualify for the Athens Olympics. The USADA imposed a four-year ban on him in 2005, and Montgomery announced his retirement. He was stripped of his medal and world record. Worse, his fees–$60,000 per race–and endorsement contracts–$575,000 a year from Nike alone–evaporated. His relationship with Jones had suffered under financial and other strains, and the two had separated in the summer of 2005, leaving Jones to raise their two-year-old son. She, too, was having financial problems, and a bank foreclosed on the $2.5 million house in Raleigh where she and Montgomery had lived.
Then, in April 2006, Montgomery had been arrested and accused of depositing $775,000 in bogus checks, for which he received a commission of $20,000 as part of a sprawling money-laundering and counterfeit-check scheme that defrauded banks of nearly $6 million. The checks were part of an expanding investigation, initially launched by the Department of Homeland Security, of Douglas Shyne and Natasha Singh, a couple who appeared to be at the center of the ring. They’d generate stolen, altered, or counterfeit checks, have their accomplices deposit them into their accounts, then funnel the proceeds, minus a generous commission, back to them. Steven Riddick, a sprinter who’d won a gold medal on the U.S. relay team in 1976, had enlisted Montgomery in the scheme. He’d gone on to coach both Montgomery and Jones. An ex-convict who knew Shyne from prison, in turn, had introduced Riddick to Shyne.
Now Montgomery’s involvement in the check scheme had landed Jones back before federal prosecutors. They showed her a check from Nathaniel Alexander for $25,000 made out to her. Her signature was on the back, and the check had been deposited into her account. Alexander shared an office with Riddick–they were close friends–and Alexander was having an affair with another track star, a close friend of Jones. Jones seemed genuinely surprised, and said she knew nothing about the check. As for her signature, she said her secretary had a stamp that she sometimes used to sign Jones’s name. She said she knew nothing about any check scheme involving Montgomery.
Then the prosecutors obtained records from Wachovia that included a $200,000 check made out to Montgomery that was deposited into a business account for which Jones had been added only days earlier as an officer and cosigner. On September 5, Jones returned for another meeting at the Manhattan U.S. Attorney’s office. Pressed on the issue of the newly discovered check and account, Jones broke down, sobbing, acknowledging that she did know about the checks. “I loved him. He was the father of my child,” she said of Montgomery. “I just wanted what was best for my child.”
Jones recalled now that she’d loaned Montgomery $50,000 for attorneys’ fees, and the $25,000 check from Alexander represented partial repayment. She remembered that Montgomery had sold his car, a “big, pink, souped-up Lincoln,” as she described it, and had a check for $25,000 made out to her. She didn’t know anything about the source of the $200,000 check (which, in any event, had bounced) but had agreed to be an officer and cosigner on the account, which was intended to benefit their son.
Jones was an impressive witness, so much so that the prosecutors listed her as a witness for the upcoming trial of Montgomery. The prosecutors had prepared a detailed script of questions and answers, including her innocent explanation for the $25,000 check. Then, just a week before trial, they got a letter from Montgomery’s lawyer alleging that Jones was a “bald-faced liar,” and if they had any doubts, they should contact the prosecutors in the BALCO case.
Perry and Levy called Matt Parrella and Jeff Nedrow, who said she’d lied in her grand jury testimony. They showed the New York prosecutors the calendars of her doping regimen and made clear that she’d lied to them repeatedly.
Meanwhile, investigators contacted Montgomery’s North Carolina car dealer, the one who had indeed handled the sale of Montgomery’s custom pink Lincoln. The story had a kernel of truth to it–but the car had been sold more than a year before Jones deposited the $25,000 check, shattering her story.
The prosecutors were taken aback. As one participant said, “We pride ourselves on some ability to tease out the liars from the truth tellers. It’s a part of our job. A lot of it is by amassing facts, a part of it is a gut thing. How believable is someone? How good is someone at lying?
“She was world-class. She created a whole story she seemed to believe. She can be very convincing. She’s physically attractive, an amazing smile, open expression. She’s well spoken, smart. She comes across really well. You want to believe her. But she was going to get up in front of twelve jurors, take an oath, then lie about the whole thing, with the same coldness and ease that she’d lied to us. People commit perjury all the time, but not with this level of calculation and confidence.”
Jones was abruptly removed from the potential witness list. And the following week, Montgomery agreed to plead guilty to the check scheme, and implicated Jones as a coconspirator.
Prosecutors asked Jones for another interview on April 8. This time the tone had changed. As Danya Perry later told the judge in the case, “We came to have some serious questions about her credibility, and the truth of the story, and we reached out to counsel. We suggested that criminal counsel was necessary. And we were very clear that we did not believe her story.”
This time, Jones brought with her an experienced criminal lawyer from North Carolina. She dropped the pretense she knew nothing about the check scheme. She admitted that she’d lied in the previous two interviews. The sale of the pink car was a fabrication. Sobbing once again, she insisted she’d lied to protect Montgomery, her child’s father, and Riddick, her former coach. But she had willingly entered into the check scheme as a participant.
Levy and Perry contacted the California prosecutors and suggested offering Jones a plea that would resolve both investigations–two counts of making false statements in each case–and Parrella and Nedrow readily agreed. Faced with the prospect of fighting cases on two coasts, and with the overwhelming evidence in the check case, Jones capitulated. She finally admitted using the performance-enhancing drugs she had so long denied.
Jones appeared before Judge Kenneth M. Karas in the federal courthouse in White Plains, New York, on October 5. At the outset Judge Karas reminded Jones that she had taken an oath to tell the truth, and thus, any answers to his questions would be subject to the penalties of perjury. “Perjury is intentionally lying under oath. If you were to do that today, you could be prosecuted separate and apart from the charges contained in the information. Do you understand that?”
“Yes, Your Honor,” she replied.
And then, at the judge’s request, she described her crimes in her own words, albeit reading from a statement that had been carefully crafted in conjunction with her lawyers. “In September 2000, before the Sydney Olympics, [Trevor] Graham began providing me with a substance he referred to as flaxseed oil, which I had never taken before, but I trusted Graham and I did not ask any questions. At Graham’s direction I took this substance orally. He told me to put it under my tongue for a few seconds and then to swallow it. I consumed this substance several times before the Sydney games and continued using it afterward. Graham told me not to tell anybody anything about what he was giving me or my workouts or my training.